Citation Nr: 1333634 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 05-28 334A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to an extraschedular rating for the service-connected bilateral pes planus, pursuant to 38 C.F.R. § 3.321(b). REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active service from November 1977 to April 1978 and from June 1978 to June 1981 with additional service in the Reserve. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision by the RO that assigned an increased rating of 10 percent for the service-connected pes planus and denied service connection for a knee disorder and an ankle condition, claimed as secondary to service-connected pes planus. The Veteran had been scheduled for hearings in May 2006, March 2007, July 2008 and February 2009. In a February 2009 letter, the Veteran asked to postpone his hearing for financial reasons. In an April 2009 letter, the RO informed the Veteran that, while he had repeatedly requested a hearing to take place somewhere closer to his home, the only location where hearings were held was at the RO. The RO added that facilities to hold hearings were not available at other locations other than with a Veterans Law Judge in Washington, DC. In a June 2009 brief, the representative requested that the Veteran be afforded a hearing closer to home. See 38 C.F.R. § 20.704(e) (2010). In the July 2009, the Board assigned a 30 percent rating for the service-connected pes planus and remanded the matters of service connection for a knee condition and an ankle disorder for additional development of the record. The Veteran filed an appeal with the United States Court of Appeals for Veterans Claims (Court). While the case was pending at the Court, the VA Office of General Counsel and the Veteran's attorney filed a Joint Motion for Remand, requesting that the Court vacate and remand that portion of the July 2009 decision that denied an extraschedular rating for the service-connected bilateral pes planus. In June 2010, the Court in turn issued an Order that granted the Joint Motion. The Veteran failed to appear for VA examinations scheduled in December 2010 and January 2011 to determine the nature and likely etiology of the claim knee and ankle conditions. In June 2011 and January 2012, the Board remanded the claim for an extraschedular rating for the service-connected pes planus to the RO for additional development and consideration. In an August 2011 rating decision, the RO effectuated the earlier decision of the Board by increasing the rating for the service-connected bilateral pes planus from 10 percent to 30 percent disabling, effective on July 17, 2002. In August 2012 the Veteran requested to appear at a hearing before a Veterans Law Judge at the RO. The Veteran was scheduled for a hearing in September 2013; however, he failed to report for his scheduled hearing. Accordingly, the Veteran's request for a hearing is withdrawn. See 38 C.F.R. § 20.704(d) (2012). In a rating decision in June 2013, the RO increased the rating for the service-connected bilateral pes planus for from 30 to 50 percent, effective on March 4, 2013. The development requested in the June 2011 and January 2012 by the Board has been completed. Thus, the case has been returned to the Board for the purpose of appellate review. Finally, the Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are not relevant to the issue on appeal. FINDING OF FACT The service-connected bilateral pes planus is not shown to be productive of a disability picture that is so exceptional or unusual as to render inadequate the application of the regular schedular standards for rating the condition. CONCLUSION OF LAW The criteria for the assignment of an extraschedular disability rating for the service-connected bilateral pes planus pursuant to 38 C.F.R. § 3.321(b)(1), are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any defects in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a January 2012 letter issued subsequent to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the January 2012 letter, and an opportunity for the Veteran to respond, the December 2012 Supplemental Statement of the Case (SSOC) reflects readjudication of the claim (most recently, a June 2013 SSOC readjudicates the claim). Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include VA and private treatment records and VA examination reports. The Board is aware that this appeal was, most recently, remanded by the Board in January 2012. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). That remand requested that the RO refer this claim to the Director of Compensation and Pension for extra-schedular consideration pursuant to the provisions of 38 C.F.R. § 3.321(b). This development was completed in November 2012. Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Boards remand order). The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any defect in the sequence of events or content of the notices is not shown to have any material effect on the case or to cause injury to the Veteran. Therefore, any such defect is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis In the July 2009 decision, the Board assigned an increased rating of 30 percent, but no higher for the service-connected bilateral pes planus. As noted, in the June 2010 Joint Motion for Remand, the parties did not wish to disturb the portion of the decision referable to the assignment of the schedular rating. Hence, the matter remaining on appeal is limited to consideration of whether a higher rating, on an extraschedular basis, is warranted. As discussed in the July 2009 decision, the Board determined that a 30 percent rating for the bilateral pes planus disability was warranted pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5276 for severe bilateral flatfoot. The Board at that time found that a higher, 50 percent schedular rating was not warranted because the Veteran did not have pronounced flatfoot (i.e., there was no persuasive evidence of marked pronation, extreme tenderness, marked inward displacement or severe muscle spasm of the tendo Achilles). 38 C.F.R. § 4.71a, Diagnostic Code 5276. The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Thun, supra. A schedular rating itself is recognition that claimant's industrial capacity is impaired to some degree. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the injury. Van Hoose, 4 Vet. App. at 363; 38 C.F.R. § 4.1 (2012). In exceptional cases, where the ratings provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned commensurate with the veteran's average earning impairment due to service-connected disability. Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular rating requires a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Fanning v. Brown, 4 Vet. App. 225, 229 (1993); 38 C.F.R § 3.321(b)(1). The Board has considered the evidence of record, but finds that the service-connected bilateral pes planus does not present an exceptional or unusual a disability picture as to warrant the assignment of higher rating on an extra-schedular basis. See 38 C.F.R.§ 3.321(b)(1). An April 2003 VA examination report noted that the Veteran reported being previously employed in construction and having significant problems with his feet. The VA examination report dated in August 2008 indicated that the Veteran had to stop working at McDonald's because of foot pain. The VA examiner noted that the Veteran's usual trade was in the field of construction and that he might be able to do sedentary work that did not require long periods of time on his feet if he had the background. The examiner added that the Veteran was unable to tolerate more physical type of jobs that he typically did, such as working in construction or at McDonald's. In a September 2008 statement, a staff physician at a VA domiciliary clinic stated that the Veteran had chronic low back pain and bilateral pes planus, which caused bilateral foot pain. The physician added that, because of this, he should be considered to be disabled from any level of work. The VA examination report dated in March 2012 noted the Veteran's reports of having so much pain in his feet that he had to stop working (construction and as a cook). He could only stand on his feet for 30 minutes at a time and then had to sit down. The VA examiner indicated that the Veteran could not work in construction due to the bilateral foot disability. However, the examiner found that the Veteran was capable of working in a sedentary job or jobs that did not require him to stand for more than 30 minutes at a time. The issue of entitlement to an extraschedular rating for the service-connected bilateral pes planus disability was referred to the Director of Compensation and Pension Service (Director). In a November 2012 opinion, the Director explained the basis for the finding that an extraschedular rating was not warranted for the service-connected bilateral pes planus disability. The Veteran's contentions that he could not work due to his service-connected bilateral foot disability were noted. However, the Director observed that there was no evidence from the Veteran's past employers that he was terminated or quit due to his service-connected bilateral pes planus. In fact, it was noted that, over the course of the past 5 years, the Veteran had only missed two days of work due to his service-connected bilateral pes planus. It was observed that VA outpatient treatment records showed that the Veteran's primary impairment over the past few years was the result of substance abuse (the Veteran's service-connected bilateral pes planus was not mentioned as a reason for his unemployment). Additionally, there was no evidence of surgical intervention for the bilateral pes planus or that such had been recommended. The Director referred to the March 2012 VA examination report that noted the Veteran's assertions that he had so much pain in his feet that he had to stop working (construction and as a cook). However, the Director noted that the examiner stated that the Veteran was able to perform sedentary employment or jobs that did not require him to stand for longer than thirty minutes at a time. The Director noted that, while the evidence showed symptoms of Achilles tendon bowing, pain and tenderness on use and manipulation, there was no evidence of symptoms of incapacitating episodes, calluses, swelling on use, abnormal weight bearing lines, marked pronation or deformity of either foot. The Veteran's foot symptomatology was relieved by built up arch support. The Director added that there was no evidence that the Veteran's bilateral pes planus required frequent hospitalization or was not adequately compensated by the current rating schedule. There was no evidence that the disability presented such an unusual picture as to make the application of the rating schedule inappropriate for the symptoms presented by the bilateral pes planus. Thus, a higher rating on an extraschedular basis for the service-connected bilateral pes planus must be denied. In a March 2013 VA examination, the examiner indicated that the Veteran's bilateral pes planus impacted his employment in that he could not perform prolonged standing or prolonged walking. In this case, the Board finds that the evidence of record, as confirmed by the Director's opinion in November 2012, does not show such an exceptional or unusual disability picture that has that the available schedular ratings for his service-connected bilateral pes planus. Notably, a higher rating is available for the service-connected bilateral pes planus disability, but his disabling manifestations do not justify assignment of a higher rating at that time (the Board is aware that the Veteran was subsequently awarded a higher, 50 percent schedular rating (highest assignable rating for bilateral pes planus) effective on March 4, 2013 based on VA examination findings which showed evidence of increased disability). Clearly the evidence demonstrated that the Veteran's industrial capacity has been impaired, to some degree, as a result of his service-connected bilateral pes planus disability. The Board finds that there is no objective showing that his disability has impacted his employability to an extent greater than what is already contemplated in the assigned schedular ratings. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Under these circumstances, the Board must conclude that an extraschedular disability rating for service-connected bilateral pes planus pursuant to 38 C.F.R. § 3.321, must be denied. ORDER An increased rating on an extraschedular basis for the service-connected bilateral pes planus, pursuant to 38 C.F.R. § 3.321(b) is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs